New Study Details Government’s Post-9/11 Strategy in Domestic Terrorism Cases

“…the war on terror has been largely a charade designed to make the American public believe that a terrorist army is loose in the U.S., when the truth is that most of the people convicted of terrorism-related crimes posed no danger to the U.S. and were entrapped by a preventive strategy known as preemptive prosecution.”

-from the introduction to Inventing Terrorists

Project SALAM (Support And Legal Advocacy for Muslims) and the National Coalition to Protect Civil Freedoms (NCPCF) jointly announce the release of a substantial new study, Inventing Terrorists: The Lawfare of Preemptive Prosecution, about the government’s post-9/11 strategy of preemptive prosecution of domestic terrorism cases. Inventing Terrorists is the first study to directly examine and critique preemptive prosecution and its abuses. A press conference to discuss the study’s findings and conclusions will take place on Monday, June 9 at 11 a.m. at the Masjid As-Salam, 280 Central Avenue in Albany, New York. All media and interested persons are invited to attend.

The 175-page study was researched and written by Albany attorneys Stephen Downs and Kathy Manley, who are co-founders of Project SALAM and officers of NCPCF. In addition to Downs and Manley, speakers at the press conference will include Marwa Elbially, executive director of the Washington, D.C.-based NCPCF, and Lynne Jackson, president of Project SALAM and designer of that organization’s database used in the study.

Inventing Terrorists has been posted for public download on the Project SALAM website, http://www.projectsalam.org/Inventing-Terrorists-study.pdf. Printed and bound copies will be available at the press conference.

Defining preemptive prosecution as “a law enforcement strategy…to target and prosecute individuals or organizations whose beliefs, ideology, or religious affiliations raise security concerns for the government,” Inventing Terrorists draws on the metaphor of “lawfare”––the use of the law as a weapon of war––to detail the government’s deliberate use of preemptive prosecution and associated legal tactics. The study argues that the government “has used preemptive prosecution to exaggerate the threat of Muslim extremism to the security of the country,” and compares a list of 399 “official” terrorism cases published by the U.S. Department of Justice in 2010 to a unique database of terrorism cases from 2001 to the present, compiled by Project SALAM, to categorize, analyze, and re-think terrorism prosecutions across America.

A compelling statistic that emerges from analysis of the 399 cases shows that 94% were either preemptive prosecution cases or cases that contained significant elements of preemptive prosecution. The study makes a firm distinction between individuals who represented real security threats to the nation and those who were preemptively prosecuted and never represented any threat. Examples of preemptively prosecuted cases and individuals include the Newburgh 4 (2009) in Newburgh, New York; José Padilla (2002) in Chicago and Florida; the Aref-Hossain case (2004–2006) in Albany; Tarek Mehanna (2012) in Boston; Professor Sami Al-Arian (2003–present) in Florida; and the Holy Land Five (2007–2012), officials of a large Muslim charity in Texas.

The study gives background on the origin of the concept of preemptive prosecution, discusses its tactical patterns (such as use of stings, agents provocateur/informants, and material support laws), and concludes with specific recommendations to change the current unfair practices in such cases. The study also includes additional details, drawn from the Project SALAM database, on the 399 cases that are analyzed; describes all cases referenced in the body of the study; and offers a large bibliography of references, sources, and literature.

One of the recommendations of Inventing Terrorists––”Stop False Statements Prosecutions Based on Unrecorded Interviews”––will be implemented in mid-July by the FBI and other law enforcement agencies under a newly announced DOJ directive. According to the study, “The FBI and other federal agencies have a practice of refusing to record formal interviews with defendants, notwithstanding that it is a felony to lie to a federal agent…because the present system of questioning unfairly stacks the deck against a target, most lawyers advise their clients not to appear voluntarily for an interview with the FBI.” Attorney General Eric Holder said in a video message on May 22 that recording such interviews “will allow us to document that detained individuals are afforded their constitutionally protected rights.”